United States District Court, S.D. New York
OPINION AND ORDER ADOPTING REPORT AND
HONORABLE PAUL A. CROTTY, United States District Judge
se plaintiff Anne Bryant ("Bryant" or
"Plaintiff) claims that her former attorney, Patrick J.
Monaghan ("Monaghan" or "Defendant"),
engaged in fraudulent misrepresentation; fraudulent
concealment; attorney deceit in violation of New York
Judiciary Law ("NY. Judiciary Law") § 487;
fraud on the court; and malpractice. ECF 23.
March 22, 2016, Monaghan moved to dismiss the action with
prejudice for failure to comply with Fed R. Civ. P. 8(a)(d)
and 9(b), and for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6); or alternatively, for summary judgment
pursuant to Fed.R.Civ.P. 56. ECF 25.
December 16, 2016, Magistrate Judge Henry Pitman issued his
thorough Report and Recommendation (the "R&R"),
recommending (1) dismissal of Bryant's claims alleging
common law fraud, violation of N.Y. Judiciary Law § 487,
and fraud on the court for failure to satisfy the heightened
pleading requirements of Fed.R.Civ.P. 9(b); (2) grant of
summary judgment dismissing the legal malpractice claim to
the extent it is predicated on (a) Monaghan's alleged
failure to discover and inform Plaintiff and the courts that
the entity "Kinder Bryant, & Aquino Ltd."
("KB&A") had not been renamed "Kinder
& Bryant" ("K&B") and (b)
Monaghan's alleged withholding of documents after
Monaghan withdrew from representing Plaintiff in connection
with a 2000 New York state court action (the "2000
N.Y.S. Action"); and (3) denial of Monaghan's motion
in all other respects. ECF 65 at 62-63. The R&R
recommends that, in light of Bryant's pro se
status and the fact that its recommendation to dismiss her
common law fraud, N.Y. Judiciary Law § 487, and fraud on
the court claims is based on her failure to allege these
claims in the proper form, Bryant be afforded one final
opportunity to state these claims properly and that she be
directed to file a Second Amended Complaint within 30 days of
this Opinion & Order. Id.
January 10, 2017, both Bryant and Monaghan filed objections
to the R&R, ECF 68, 69. Bryant filed a reply to
Monaghan's objections on January 24, 2017. ECF 72.
Bryant submitted a "solicitation" requesting this
Court's recusal on January 20, 2017. ECF 71. Monaghan
opposed the request on February 3, 2017. ECF 73.
Court has reviewed the objections, and for the reasons
described below, ADOPTS the R&R in full; and DENIES
Bryant's recusal request.
Review of Objections
Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations by the magistrate
judge." 28 U.S.C. § 636(b)(1)(C). Where a party
makes a timely written objection, the district court must
review the contested issues de novo. See Arista Records
LLC v. Doe, 604 F.3d 110, 116 (2d Cir. 2010).
"However, where a party does not submit a timely
objection, 'a district court need only satisfy itself
that there is no clear error on the face of the
record.'" Martinson v. United States Parole Comm
'n, No. 02-CV-4913, 2005 WL 1309054, at *3 (S.D.N.Y.
June 1, 2005).
the extent, however, that the party makes only conclusory or
general objections, or simply reiterates the original
arguments, the Court will review the Report strictly for
clear error." Pinkney v. Progressive Home Health
Servs., No. 06-CV-5023, 2008 WL 2811816, at * 1
(S.D.N.Y. July 21, 2008). "[E]ven &pro se
party's objections to a Report and Recommendation must be
specific and clearly aimed at particular findings in the
magistrate's proposal, such that no party be allowed a
'second bite at the apple' by simply relitigating a
prior argument." Id.
judgment is appropriate where "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law, "
Fed.R.Civ.P. 56(a), and where "the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party." Smith v. Cnty. of Suffolk,
716 F.3d 114, 121 (2d Cir. 2015) (quoting Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)). The Court "resolve[s] all ambiguities
and draw[s] all reasonable inferences in the light most
favorable to the nonmoving party." Summa v. Hofstra
Univ., 708 F.3d 115, 123 (2d Cir. 2013). Pro se
litigants' submissions "must be construed liberally
and interpreted 'to raise the strongest argument they
suggest.'" Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting
Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)).
However, "a party may not rely on mere speculation or
conjecture as to the true nature of the facts to overcome a
motion for summary judgment." Hicks v. Baines,
593 F.3d 159, 166 (2d Cir, 2010) (internal citations
Civ. P. 9(b) requires a plaintiff to "state with
particularity the circumstances constituting fraud or
mistake." A complaint alleging fraud must "(1)
detail the statements (or omissions) that the plaintiff
contends are fraudulent, (2) identify the speaker, (3) state
where and when the statements (or omissions) were made, and
(4) explain why the statements (or omissions) are
fraudulent." Eternity Global Master Fund Ltd. v.
Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 187 (2d
Cir. 2004) (citations and quotations omitted). The facts must
"give rise to a strong inference of fraudulent intent,
" and cannot be based "on speculation and
conclusory allegations." Lerner v. Fleet Bank,
N.A., 459 F.3d 273, 290 (2d Cir. 2006) (citations and
Court agrees with the R&R's determination that this
heightened pleading standard also applies to Bryant's NY.
Judiciary Law § 487 claim, as it does to Bryant's
common law fraud and fraud on the court claims. See
R&R at 10-11.
makes three specific objections. First, regarding the N.Y.
Judiciary Law § 487 claim, Bryant objects to the
R&R's finding that she has not alleged any specific
facts inferring that Monaghan intended to deceive the court
or any party. ECF 69 at 2; see R&R at 40.
Second, Bryant objects to the R&R's finding of no
fraud on the court based on the absence of any
particularly-alleged facts showing that Monaghan "acted
with an intent to defraud, " R&R at 44, on the
grounds that the R&R "disregards important
facts." ECF 69 at 5. Third, Bryant objects to the
R&R's finding of no ...